Nagaraja vs State of Karnataka

N. Ananda, J.—The appellant (hereinafter referred to as accused) was tried and convicted for an offence punishable under Section 302 IPC. Therefore, he is before this court.

We have heard Smt. Badrunnisa, learned counsel for accused and Sri. B. Visweswaraiah, learned Government Pleader for the State.

The accused was tried for the aforestated offence on the ground that during intervening night of 30/31.08.2004, accused splashed kerosene and set fire to deceased Padma in his house at Rehmathnagar, Vijayapura.

It is the case of prosecution that deceased Padma was abandoned by her husband. She had four children. She was staying in the house of her mother for sometime. Thereafter, she came to Vijayapura and became intimate to accused. The accused had set up a house for deceased. The accused was selling Lottery Tickets in Vijayapura Bus Station. The deceased was working as a maid servant. The deceased had admitted her children born to her first husband in Government Hostel at Vijayapura. The accused was suspecting the fidelity of deceased. He used to come home in a drunken state and assault the deceased.

During intervening night of 30/31.08.2004 at about 12.30 a.m., accused came to his house situate at Rehmath Nagar and questioned the deceased with whom she had gone to Kaiwara (a pilgrimage place) about three or four days back. When the deceased stated that she had not gone to Kaiwara, accused became aggressive, splashed kerosene on her and set her on fire and ran away from that place. The neighbours came and shifted deceased to Government Hospital at Devanahalli. After preliminary treatment, deceased was shifted and admitted in Victoria Hospital at Bangalore. She succumbed to burn injuries on 03.09.2004.

The prosecution has relied on the following:

"I Motive

II Dying Declaration of deceased Padma

III The evidence of mother and close relatives of the deceased.

IV The conduct of accused after the incident."

The neighbors of deceased have turned hostile to the case of prosecution. They have not only denied the incident but also denied the identity of accused and deceased. In the circumstances, the prosecution has relied on evidence of the mother of deceased namely P.W. 12- Lakshmamma.

Before adverting to evidence of P.W. 12- Lakshmamma, it is necessary to state that medical evidence given by P.W. 5 - Dr. P.K. Devdas has not been controverted. The contents of postmortem examination report (marked as per Ex. P4) would reveal that deceased had suffered burn injuries and succumbed to burn injuries in Victoria Hospital on 03.09.2004 and her death was due to septicemia as a result of burn injuries. We have no reasons to suspect the medial evidence.

The accused has examined D.W. 2 - Dr. D. Nagesh who was then working as a Doctor in Government Hospital at Devanahalli to prove that deceased had suffered burn injuries due to accidental fire. D.W. 2 has deposed that she had suffered burn injuries due to accidental fire, which in our considered opinion, has been rightly rejected by the trial court.

D.W. 2 had not sent medico-legal intimation to the jurisdictional police when the deceased was admitted in Government Hospital at Devanahalli. D.W. 2 had not intimated the jurisdictional police that deceased caught fire and suffered burn injuries due to accidental fire. From the contents of post-mortem examination report, we find that deceased had suffered burn injuries to an extent of 90 - 95%. The accidental fire could not have caused injuries to that extent. D.W. 2, apart from producing the photostat copy of Outpatient Slip (marked as per Ex. D4) and photostat copy of Referring Register (marked as per Ex. D5) has not produced any document to show that deceased had given history of injuries when she was treated in Government Hospital at Devanahalli. From the contents of copy of outpatient slip (Ex. D4), we find that words ''Accidental Burns 100%'' are subsequently written. This document to some extent would help the case of prosecution that even after suffering burn injuries, the deceased was conscious and well oriented. From the contents of Referring Register (Ex. D5), we find that words ''Accidental Burns 100%'' are subsequently inserted. Therefore, attempt made by the accused to prove that deceased had suffered burns due to accidental fire has failed.

The neighbours have denied that they knew the deceased. They have also denied that accused was staying in the house at Rehmathnagar. In the circumstances, prosecution has relied on evidence of the mother of deceased namely P.W. 12-Lakshmamma.

P.W. 12-Lakshmamma has deposed; that deceased was given in marriage to one Channaraju of Tamilnadu since about 6 or 7 years prior to date of incident; the deceased gave birth to four children; six years after the marriage, her husband abandoned her; thereafter, deceased and her children were staying in the house of P.W. 12 at Jaraganahalli; the deceased was working as a maid servant; the deceased came to Vijayapura along with her children; the children of deceased were admitted in Government Hostel at Vijayapura; the deceased was staying alone; P.W. 12 had fallen ill and she was staying in the house of deceased; accused was visiting the house of deceased; accused used to come to the house of deceased in a drunken state; he was quarrelling with the deceased that her character was not good; P.W. 12 had pacified the accused.

During cross-examination, P.W. 12 has admitted that the name of first husband of deceased is Nagaraju. She has deposed that after the incident, when she enquired the deceased about injuries suffered by her, deceased told her that Naganna (accused) came home in a drunken state, splashed kerosene, set her on fire and ran away from that place.

P.W. . 12 is the mother of deceased. She had no reasons to falsely implicate the accused leaving aside the real culprit. P.W. 12 is a rustic villager. She had no grudge or grievance against the accused to falsely implicate him.

The evidence of P.W. 12 proves that accused had kept the deceased in a house at Rehmathnagar. The accused was suspecting the fidelity of deceased. On the date of incident, he had set the deceased on fire. P.W. 12 came to the hospital and learnt the incident from her daughter (deceased).

P.W. 9-Mahaboob Sab has admitted that deceased was staying in his house at Rehmathnagar. He has admitted that deceased had suffered burn injuries. He has denied that accused was visiting that house. He was declared as a hostile witness for resiling from a part of his statement recorded under Sec. 161 Cr.P.C.

The evidence of P.W. 9 that deceased was staying in his house at Rehmathnagar and she suffered burn injuries in his house during the midnight of 30/31.08.2004 would lend corroboration to the case of prosecution. The neighbours of deceased who had reached the place of incident immediately after the incident have not supported the case of prosecution. Therefore, the prosecution has mainly relied on oral statement of the deceased made to her mother and also dying declaration recorded by P.W. 13-Ramesh, the then Sub-inspector of Police of Vijayapura Police Station.

In the dying declaration (marked as per Ex. P11), deceased has stated about the circumstances, which lead to her death. She has stated about her relationship with the accused. She has stated that accused was suspecting her character and he was frequently questioning her. She has sated that on the date of incident (during the midnight of 30/31.08.2004) accused came to her house in a drunken state and picked up quarrel with her stating that she had gone to Kaiwara with somebody else. The accused doused kerosene on the deceased, set her on fire and ran away from that place. The neighbours shifted her to Government Hospital at Devanahalli and thereafter to Victoria Hospital at Bangalore. Her statement was recorded by P.W. 13 in Victoria Hospital at Bangalore between 3.30 to 4.15 p.m., on 31.08.2004.

P.W. 13-Ramesh (Sub-inspector of Vijayapura Police Station) has deposed; he received information about the admission of deceased to Victoria Hospital and he had gone to Victoria Hospital. He enquired P.W. 11- Dr. Gurumurthy about physical and mental fitness of the deceased to give her statement. P.W. 11 examined the injured and gave a certificate (marked as Ex. P 11(a)) that deceased was oriented and fit to give her statement. P.W. 11 certified the condition of deceased at about 3.30 a.m. Thereafter, P.W. 13 recorded the statement of deceased. P.W. 11 has deposed and confirmed these facts.

At this juncture, it is relevant to state that P.W. 11 did not know the deceased or accused. He had no reasons to give false evidence that he had examined the deceased and gave the certificate regarding mental and physical fitness of the deceased to give her statement.

P.W. 13-Ramesh was the Sub-inspector of Vijayapura Police Station. He had received intimation about the admission of deceased to Victoria Hospital at Bangalore.

At this juncture, it is relevant to state that distance between Vijayapura and Bangalore is about 40 kilometers. P.W. 13 came to Victoria Hospital and contacted P.W. 11-Dr. Gurumurthy and enquired about physical and mental condition of deceased to give her statement. P.W. 11 examined the deceased and gave his certificate as per Ex. P11 (a). Thereafter, P.W. 13 recorded the dying declaration of deceased as per Ex. P11.

The evidence of P.W. 13 is sought to be discredited by contending that P.W. 13 had enmity against the accused.

In our considered opinion, this contention has no basis. Even as per the version of accused, he was selling Lottery Tickets in Vijayapura Bus Station and there was enmity between P.W. 13 and accused. The accused was not selling Lottery Tickets in a shop. He was selling lottery tickets in Vijayapura Bus Station. Considering the magnitude of business of accused, it is hardly possible to accept that P.W. 13 had developed grudge against the accused, therefore, he had implicated the accused in a case of murder. The presence of accused before the incident has been proved by the prosecution. The accused disappeared after the incident. When P.W. 13 arrested him, he found burn injuries on the person of accused. The accused and deceased were not husband and wife but they were living as husband and wife.

In a decision reported in (2007) 1 SCC (Cri) 80 (in the case of Trimukh Maroti Kirkan v. State of Maharashtra) the Supreme Court has held:

"15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

In the case on hand, the inmates of house were deceased and accused. The deceased had suffered burn injuries. The accused had disappeared after the incident. The accused being the inmate of the house before the incident should have given cogent explanation as to how the deceased suffered burn injuries. The accused when examined under Section 313 Cr.P.C., has not offered explanation as to how the deceased suffered burn injuries.

In the discussion made supra, we have given reasons to reject the evidence of D.W. 2 who was examined by the accused to prove that deceased had suffered burn injuries due to accidental fire.

On reappreciation of evidence, we find that accused had kept the deceased in his house at Rehmathnagar, Vijayapura. The accused was suspecting the fidelity of deceased. On a fateful day, the accused came home in a drunken state and quarreled with the deceased. He splashed kerosene on the deceased, set her on fire and ran away from that place.

The evidence of P.W. 12 regarding relationship between the accused and deceased and also oral dying declaration made by the deceased through P.W. 12 (the mother of deceased) does not suffer from any discrepancy. The investigation officer (P.W. 13) has recorded the dying declaration of deceased after obtaining certificate from P.W. 11 about mental and physical fitness of deceased. P.W. 11-Dr. Gurumurthy and P.W. 13-Ramesh (investigation officer) did not know the accused when the statement of deceased was recorded. In the circumstances, it is not possible to hold that P.W. 11 and P.W. 13 had concocted dying declaration (Ex. P11) to foist a case against the accused.

We do not find any reasons to interfere with the impugned judgment. The appeal is dismissed.